When can a CARICOM Member State deny entry to Community nationals?

RIGHTS TO FREEDOM OF MOVEMENT within the Caribbean Single Market and Economy received their clearest articulation in the case of Shanique Myrie vs. The State of Barbados, decided by the Caribbean Court of Justice on October 4 , 2013. This simplified brief provides the key takeaways from the case, as a backgrounder to current regional political and media conversations on free movement.

TIMELINE TO MYRIE V. BARBADOS
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On March 14, 2011, Shanique Myrie, a 22-year-old Jamaican national, arrived in Barbados with the stated intention of vacationing for two weeks. Her excitement was short-lived after she was refused entry – “without plausible reason”, she claimed – by Barbadian immigration and border officials.

Alleging that she was on the receiving end of a spate of discriminating insults, an unlawful body cavity search and detention in demeaning and unsanitary conditions, Myrie also claimed that her luggage was subjected to multiple searches which failed to reveal contraband substances. A day later, she was deported to Jamaica after spending the night in an airport detention cell.

An intense media storm erupted in the days to follow in both territories. Jamaica Observer’s now-infamously headlined article, Finger-raped in Barbados, alleged a history of ill-treatment of Jamaican nationals in Barbados, while bilateral diplomatic attempts to reach a settlement soured, with Barbados contending that Myrie’s accounts were baseless following its own investigations.

By January 12, 2012, Myrie and her lawyers filed an application against Barbados with the Caribbean Court of Justice, claiming that her rights under Articles 7, 8 and 45 of CARICOM’s Revised Treaty of Chagaramus (RTC), and a 2007 Decision by CARICOM Heads of Government – which provides for automatic stay of Community nationals within CARICOM Member States – had been infringed.

By April 20, 2012, the Court ruled that Myrie had sufficient grounds for her case to heard.

[tw-accordion class=””] [tw-accordion-section title=”Key articles for the Myrie defense”] [/tw-accordion-section] [tw-accordion-section title=”Article 7: Revised Treaty of Chaguaramas”] ‘Within the scope of application of this Treaty and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality only shall be prohibited’
[/tw-accordion-section] [tw-accordion-section title=”Article 8: Revised Treaty of Chaguaramas”] ‘Subject to the provisions of this Treaty, each Member State shall, with respect to any rights covered by this Treaty, accord to another Member State treatment no less favourable than that accorded to: (a) a third Member State; or (b) third States.’
[/tw-accordion-section] [tw-accordion-section title=”Article 45: Revised Treaty of Chaguaramas”] ‘Member States commit themselves to the goal of free movement of their nationals within the Community’ 
[/tw-accordion-section] [/tw-accordion]

BARBADOS’ DEFENSE
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For its part, Barbados vehemently denied the majority of Myrie’s claims, saying only that she was denied entry, detained overnight and then deported to Jamaica. The State also went on record to deny that Myrie was subjected to cavity searches or any other improper conduct, or that she was treated unfavourably and denied entry on the basis of her Jamaican nationality.

Barbados further submitted that Myrie was not truthful when she gave the name of her Barbadian host during an interview by border officials – an offense for which the state reserves the right to refuse entry – under the provisions of Barbados’ Immigration Act.

UNDERMINING THE CONFERENCE OF HEADS DECISION
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Barbados did not just stop at refuting Myrie’s allegations. The State also questioned the applicability of the 2007 Conference of Heads decision, stating that:

• The Decision was merely an agreement that did not create any legally binding rights;

• Decisions of Heads require unanimity, and Antigua & Barbuda had previously entered a “reservation” in connection to the decision;

• The Decision had not been enshrined into Barbados’ domestic law in order to create legally-binding rights and obligations at the Community level;

• Rights pursuant to a Conference Decision could not be reviewed in the context of the Revised Treaty of Chaguaramas;

• Right of entry for Community nationals is not absolute or without restrictions;

• The Decision itself acknowledges “the rights of Member States to refuse undesirable persons entry, and to prevent persons from becoming a charge on public fund; and

• Barbados committed no violations under RTC Articles 7 and 8 of discrimination based on nationality, given that Myrie was not treated less favourably than any other CARICOM nationals

[tw-toggle title=”2007 Decision of the Conference of CARICOM Heads”] ‘(The Conference) agreed that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds’
[/tw-toggle]

CASE DELIBERATION
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On September 27, 2012, under domestic pressure, the Jamaican government was given permission by the CCJ to intervene in the hearing and a March 2013 trial date was set, with the first sitting of the Court in Kingston, Jamaica to hear Myrie’s evidence.

MYRIE’S TESTIMONY
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In her account, Shanique Myrie contended that she was accused of carrying drugs by Barbados’ police officers, and insulted by immigration officials who also accused her of lying. In her submission, Myrie quoted one Barbados official as saying:

“I hate these [redacted] Jamaicans. You Jamaicans are all liars…you only come here to steal our men and carry drugs into our country”– Alleged quote by Barbados official

Myrie contended that her luggage was searched multiple times, and that she was repeatedly insulted and then subjected to a cavity search, after the officer in question directed her to a bathroom, locked the door and ordered her to strip. Myrie added, “I felt dirty, angry and ashamed.”

She then submitted that she was then taken back to a Drug Squad office and was told that she had been permitted entry into the country, but that such permission would be rescinded if she was found to be untruthful.

Border officials allegedly then questioned her on her knowledge of a local man by the name of Daniel Forde, whom local media speculated to be connected to Myrie. And it was when she denied knowledge of Forde, Myrie claims, that she was denied entry and detained.

BARBADOS’ REBUTTAL
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Barbados ardently disputed Myrie’s evidence, stating that she was not subjected to a cavity search, nor was she suspected of being a drug carrier. Further, they contended that she was never insulted or demeaned, nor was her luggage repeatedly searched and damaged.

Barbados maintained that Myrie was under constant supervision by its police , and denied questioning Myrie about a connection to a Daniel Forde.

Barbados further harped on inconsistencies and inaccuracies in Myrie’s evidence, even as its own officers collaborated in the joint preparation of their testimonies, to deliver verbatim versions of events.

The Court later determined that Myrie’s inconsistencies, which were in relation to sense of time and sequences of events, bore no great consequence on the case at hand.

Further, the Court was satisfied enough by Myrie’s account of the events – based on her ability to describe the rooms in which she was detained, the description of the police and custom officers who were present, and her recollection of what took place – to determine that the State’s account lacked credibility.

THE JUDGEMENT
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On October 4, 2013, after careful deliberation and analysis of the facts presented, the Court found that the State of Barbados breached Shanique Myrie’s right of entry without harassment and the imposition of impediments.

Her right was further breached by the denial of entry, the treatment to which she was subjected, the conditions under which she was detained and her unjustified deportation; all of which the Court believed fully contravened the 2007 Conference Decision and Article 45 of the RTC. On this basis, the Court determined that Barbados’ liability had been established, and awarded Myrie US$ 38,620 in pecuniary and non-pecuniary damages.

Importantly, the Court unequivocally established the precedence of Community law over national law for signatories to the Revised Treaty of Chaguaramas:

Implementation of the very idea and concept of a Community of States necessarily entails as an exercise of sovereignty the creation of a new legal order…Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at the Community level

– CCJ Judgement

IMPLICATIONS OF THE JUDGEMENT
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The RTC and the 2007 Conference Decision have imposed a significant change to the legal landscape in relation to immigration throughout CARICOM.

It established that Community nationals have a right to enter Member States unless they are deemed to be “undesirable persons” or persons who may become a charge on public funds. Under these exemptions it must be understood that “undesirable” refers to those Community nationals who actually pose or can reasonably be expected to pose a threat to the Member State. Meanwhile, a person deemed to be a charge on public funds if they present for entry with insufficient cash at hand.

For both exceptions, the burden is on the refusing state to prove that Community nationals are undesirable or a potential public charge. In Myrie’s case, Barbados failed to prove how Myrie fit either exception in order to deny her entry.

TAKEAWAY
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One of the landmark takeaways of the Myrie judgement is that the right of free movement within CARICOM under Community law takes precedence over domestic laws.

 It is the obligation of each State, having consented to the creation of a Community obligation, to ensure that its domestic law, at least in its application, reflects and supports Community law.

– CCJ Judgement

Further, the Court’s decision also highlights that all CARICOM States have the responsibility to ensure that there is a minimum standard of treatment applicable to CARICOM citizens as they move throughout the region.

Beyond Barbados and Shanique Myrie, the judgement has brought the immense legal obligations of the RTC to bear on its signatory countries, with little leeway for state-driven refusals of Community nationals, except those which must be backed on bases beyond mere  nationalism.